Leavell v. Western Union Telegraph Co.

Clark, J.: In Express Co. v. Railroad, 111 N. C., 463, this Court affirmed the constitutionality of the act (Ch. 320, Acts 1891) establishing the Railroad and Telegraph Commission. In Mayo v. Telegraph Co., 112 N. C., 343, it sustained the power of such Commission under Section 26 of said act, to establish rates for telegraph companies. In Railroad Commisson v. Telegraph Co. (Albea’s case), 113 N. C., 213, the Court held that telegraphic messages transmitted by a company from and to points in this State, although traversing another State in the route, do not constitute inter-state commerce and are subject to the tariff regulation of the commission. In this it followed the unanimous opinion of the Supreme Court of the United States, delivered by Fuller, C. J., in Railroad v. Pennsylvania, 145 U. S., 192. To the same purport, Campbell v. Railroad, 86 Iowa, 587. In the present case the commission find as a fact that “the defendant has a continuous line by which messages *221 may be transmitted from Wilson to Edenton and other adjacent points in North Carolina, but this line traverses a part of the state of Virginia, passing through the city of' Norfolk; ” and it properly holds upon the evidence “that the telegraph office at Edenton is under the control of the defendant, and the operator, though employed by the railroad company, is the agent and operator of the defendant.” It necessarily follows from this state of facts that as the defendant could have sent the message the whole distanee overfits own line, it can not be heard to say that it did not do what it ought to have done and thus collect 50 cents for the.message instead of 25 as allowed by the commission tariff. The defence set up that in fact it only carried the message to Norfolk and then paid another company to forward it to Edenton can not be regarded when it might itself have completed the delivery of the message. The defendant seeks to excuse itself on the plea that it has only one wire to Edenton and that this is fully occupied at that office by the work it does for the railroad company. But it is the duty of the telegraph company to have sufficient facilities to transact all the business offered to it for all points at which it has offices. If the press of busin ess offered is so great that one wire or one operator at a joint is not sufficient it is the duty of the company to add another wire or an additional employee. It is not a mere private business but a public duty which the defendants by their franchise are authorized to discharge. It is further to be noted that in giving to the railroad company the preference in the use of their line to Edenton, while at other points, as Moyock, Oentreville and Hertford on the same line, the public is admitted to the use of the wire, the defendant is making á forbidden and illegal discrimination in favor of .one customer and against the public at large, as was intimated in Albea’s case, supra, 113 N. C., on page 226. The findings *222 of fact and evidence are fuller, and present a somewliat different and stronger case against the defendant than in Albea’s case. By Section 11 of the defendant’s contract with the railroad company the defendant remains owner of the telegraph line to Edenton, N. C., and its belongings which are to remain “part of its general telegraph system” and “to be controlled and regulated by the telegraph company.” Section third of the contract gives the railroad messages precedence over commercial business but stipulates that when railroad business shall require the exclusive use of one wire the'telegraph company shall on sixty days notice furnish material for a second wire, which second wire shall be used for railroad business exclusively, and such commercial business as can be done without interfering with railroad business. Section 6 provided that where the railroad company shall open offices, the operators “acting as agents of the telegraph company” shall receive such commercial and public telegrams as may be offered, collecting rates prescribed by the telegraph company, and render monthly statements and pay over the receipts to the telegraph company. Section 7 provides that whenever the volume of business at any point justifies it, the telegraph company shall put in an additional operator. It will be thus seen that the line to Edenton is an integral part of the defendant’s general telegraph system. It is only by virtue of its franchise as a telegraph company that it can operate its line to Edenton at all. It cannot discriminate at that point in favor of or against any customer. It can not substract itself from obedience to the rates prescribed by the authority of the State, acting through the Commission, by a contract giving one customer, the railroad, preference in business and pleading that such business occupies the only wire it has. The discrimination is itself illegal. Besides, if it were'not, the small cost of an additional wire, which it is common *223 knowledge does not exceed ten dollars per mile, furnishes no ground to exempt the defendant from furnishing the additional facility to do the business for all. The charge of a double rate between Edenton and other points in North Carolina is a far heavier imposition upon the pub-public than the cost of the additional wire to defendant, and is just the kind of burden and discrimination which the Commission was established to prevent. In Albea’s case, sujpra, no commercial message was tendered, and the point now decided was not presented by the record. The rifling of the Commission is in all respects Affirmed.'